Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 00 C 399--Allen Sharp, Judge.
Before Bauer, Coffey and Ripple, Circuit Judges.
The opinion of the court was delivered by: Ripple, Circuit Judge.
The Petitioner, Kirk Martin, was convicted on three separate occasions for various offenses involving reckless driving and driving while intoxicated. The sentence for his first conviction has expired. Mr. Martin has filed a habeas petition seeking relief from the sentence he currently is serving, but attacking the constitutionality of only his first conviction. The district court denied the petition. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
In April 1997, Mr. Martin was convicted in Indiana state court of reckless driving; we shall refer to this conviction as his "first conviction." He was sentenced to 180 days of incarceration (all but six days suspended) and one year of probation, and his driving privileges were suspended for 180 days. It is this conviction that he attacks as unconstitutional, claiming, among other things, that he was intoxicated during sentencing and that his guilty plea was therefore involuntary.
In September 1997, Mr. Martin pleaded guilty to driving while intoxicated and driving with a suspended license, his "second conviction." For each of these offenses, the court sentenced him to one year of incarceration, 180 days of which were suspended, and probation for one year, and the court suspended his driving privileges for one year. He served 90 days of his sentence before he was released.
In June 1998, Mr. Martin was found guilty of several offenses: (1) driving while intoxicated; (2) refusing to identify himself; (3) driving to the left of center; (4) driving with a suspended license; (5) driving while intoxicated, second offense; and (6) habitual substance offender; collectively, his "third conviction." The court sentenced Mr. Martin as follows: one and a half years of incarceration and the suspension of his driving privileges for two years for the driving while intoxicated, second offense, count; five years of incarceration for the habitual substance offender count; and 60 days of imprisonment for the refusal to identify count; all sentences to run concurrently. The other counts were dismissed. The court also revoked the probation that Mr. Martin was serving under his second conviction and ordered the balance of his sentence for the second conviction to be served, the sentence to run consecutive to the sentence imposed for Mr. Martin's third conviction.
B. District Court Proceedings
In October 2000, while Mr. Martin was serving the sentence for his third conviction, he filed a petition for a writ of habeas corpus in the district court under 28 U.S.C. § 2254. In his petition, Mr. Martin challenges his first conviction as unconstitutional. The state filed a motion to dismiss on the basis that Mr. Martin was no longer "in custody" for purposes of § 2254 because the sentence for the conviction he challenged had expired. Mr. Martin filed a traverse in which he argued that he was "in custody" ...